Federal Communications Commission	DA 23-466


Before the
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554


In the Matter of

Gendreau Broadcast LLC

Application to Renew License for
KMCN(FM), Clinton, Iowa 
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NAL/Acct. No. MB-202341410008
FRN:  0027365139

Facility ID No. 33054
Application File No. 123953


MEMORANDUM OPINION AND ORDER AND 
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
	
Adopted:  May 31, 2023	Released:  May 31, 2023

By the Chief, Audio Division, Media Bureau:

I. INTRODUCTION
1. We have before us an application (Renewal Application) filed by Gendreau Broadcast LLC (Gendreau) to renew the license for KMCN(FM), Clinton, Iowa (Station). Application File No. 123953.
  Also before us are an informal objection (Objection) to the Renewal Application filed by Dave Vickers (Vickers), Pleading File No. 131262 (Objection).
 and Gendreau’s response (LOI Response) Letter from Chris Streets, General Manager, KMCN/KCLN Radio, to FCC (dated Mar. 13, 2023) (LOI Response).
 to a Letter of Inquiry (LOI) that we sent, which requested that Gendreau respond to allegations made in the Objection. Letter from Albert Shuldiner, Chief, Audio Division, to Gendreau Broadcast LLC (Dec. 15, 2022) (LOI).
  In this Memorandum Opinion and Order and Notice of Apparent Liability for Forfeiture (NAL), This NAL is issued pursuant to section 503(b) of the Communications Act of 1934, as amended, and section 1.80 of the FCC’s rules (Rules).  See 47 U.S.C. § 503(b); 47 CFR § 1.80.  The Bureau has delegated authority to issue the NAL under section 0.283 of the Rules.  See 47 CFR § 0.283.  
 we find Gendreau apparently (1) willfully and repeatedly violated section 73.3526 of the Commission’s rules (Rules) by failing to timely upload or failing to upload required materials to the Station’s online public inspection file (OPIF), and failing to include a link to the Station’s OPIF on the Station’s website, 47 CFR § 73.3526.
 and (2) willfully made an incorrect certification in the Renewal Application in violation of section 1.17(a)(2) of the Rules. Id. § 1.17(a)(2).
  Based upon our review of the facts and circumstances before us, we grant in part and otherwise deny the Objection, and propose a monetary forfeiture in the amount of eight thousand dollars ($8,000).
II. BACKGROUND
2. Gendreau filed the Renewal Application on October 5, 2020.  Vickers then filed the Objection.  Therein, he alleged that Gendreau (1) had failed to upload information to the Station’s OPIF, Objection at 3-6.
 (2) had failed to include links to the Station’s OPIF and most recent Equal Employment Opportunity (EEO) Program Report on the Station’s website, Id. at 4.
 and (3) falsely certified in the Renewal Application that the Station’s OPIF contained the documentation required by the Rules. Id. at 2, 6.

3. Gendreau did not respond to the Objection.  Accordingly, we sent the LOI, which requested that they do so.  In the LOI Response, Gendreau acknowledged that it had failed to upload information to the Political Files section of the Station’s OPIF. LOI Response at 1.

III. DISCUSSION
A. Online Public Inspection File
4. We agree with Vickers that Gendreau has failed to comply with certain requirements related to the Station’s OPIF and set forth in section 73.3526 of the Rules. Objection at 2-6.  See also 47 CFR § 73.3526.
  Based on our review of the record, the Station’s OPIF, and the Station’s website, we conclude that Gendreau (1) failed to timely upload issues/programs list for all four quarters of 2018, and the second quarter of 2019, and has not uploaded any issues/programs lists since, See 47 CFR § 73.3526(e)(12) (requiring that commercial AM and FM broadcast stations upload quarterly issues and programs lists to their OPIFs no later than the tenth day after each quarter).
 (2) did not upload the LOI and the LOI Response to the Station’s OPIF, See 47 CFR § 73.3526(e)(10) (requiring commercial broadcast stations to upload material relating to an FCC investigation or complaint to their OPIFs).  The LOI reminded Gendreau to upload it and the LOI Response to the Station’s OPIF.  LOI at 4.  Despite this reminder, Gendreau did not upload these documents to the Station’s OPIF.
 (3) neglected to upload required information to the Political Files section of the Station’s OPIF, Gendreau has admitted that, between October 29, 2018, and the date of the LOI Response (i.e., March 13, 2023), the Station did “receive political based advertising.”  LOI Response at 1.  Gendreau states that all paperwork was placed inside the Station’s physical public file but the Station’s General Manager forgot to post the paperwork to the Station’s OPIF.  Id.  We note that, while Gendreau reports that the paperwork has now been uploaded, the Political Files section of the Station’s OPIF remains empty.
 and (4) did not include a link to the Station’s OPIF on the Station’s website. See 47 CFR § 73.3526(b)(ii) (requiring commercial broadcast stations to provide a link to “the public inspection file hosted on the Commission’s website from the home page” of their own websites).
  It is crucial that stations maintain OPIFs that are complete and up to date, and link to their OPIFS on their websites because the information in them directly affects, among other things, the public’s ability to be informed about a station’s compliance with its obligations.  Accordingly, below, we propose a forfeiture related to these violations.  We urge Gendreau to take steps to bring (and keep) the Station’s OPIF in compliance, and note that the failure to do so could lead to additional sanctions.
B. Inaccurate Certification
5. We find that, as Vickers alleges, Objection at 2, 6.
 Gendreau made an inaccurate certification in the Renewal Application in response to the item regarding the Station’s OPIF.  Gendreau was required to certify whether “the documentation required by 47 C.F.R. Section 73.3526 or 73.3527, as applicable, has been uploaded to the station’s public inspection file as an when required.”  Gendreau certified “Yes” in response to this item.  As discussed above, though, the Station’s OPIF was missing a number of items.  
6. We have determined that Gendreau’s inaccurate certification violated section 1.17(a)(2) of the Rules, which prohibits applicants from providing material information that is incorrect without a reasonable basis for believing that such information is not incorrect or misleading. 47 CFR § 1.17(a)(2).
  Given the state of the Station’s OPIF, we hold that Gendreau had no reasonable basis for believing its certification was correct. We note that the LOI requested that Gendreau explain the basis for this certification.  LOI at 2.  However, Gendreau did not offer an explanation in the LOI Response.
  We do not find, though, that Gendreau made the inaccurate certification with intent to deceive the Commission.  Rather, we conclude that Gendreau failed to exercise appropriate diligence in its filings with the Commission.  Accordingly, we propose a forfeiture related to this violation.
C. EEO Program Report
7. We reject Vickers’ assertion that Gendreau was required to include the Station’s EEO public file report on the Station’s website. Objection at 6.
  While section 73.2080(c)(6) does specify that broadcast stations must annually place in their OPIFs and on their websites an EEO public file report, See 47 CFR § 73.2080(c)(6).
 section 73.2080(d) exempts “station employment units that have fewer than five full-time employees” from this EEO requirement. Id. § 73.2080(d).
  Gendreau has certified that the Station’s employment unit qualifies for the exemption. See Application File No. 123591.
  Accordingly, we find that the absence of an EEO public file report from the Station’s website violated no Commission rule.
D. Proposed Forfeiture
8. Section 503(b) of the Act authorizes the Commission to impose a forfeiture against any entity that “willfully or repeatedly fail[s] to comply with . . . any rule, regulation, or order issued by the Commission . . . .” 47 U.S.C. § 503(b).
  To determine the appropriate forfeiture amount, we must consider the nature, circumstances, extent, and gravity of the violation and, with respect to the violator, the degree of culpability, any history of prior offenses, ability to pay, and such other matters as justice may require. Id. § 503(b)(2)(E); 47 CFR § 1.80(b)(10).
  The Commission has established forfeiture guidelines, base penalties for certain violations and has identified criteria that it considers when determining the appropriate penalty in any given case. 47 CFR § 1.80(b)(10).
  Under these guidelines, we may adjust a forfeiture downward for violations that are minor, violations that are voluntarily disclosed, where there is a history of compliance, or where there is an inability to pay. Id. at Table 3.
  We may adjust a forfeiture upward for violations that are egregious, intentional, continuous, and/or repeated, and violations that cause substantial harm or generate substantial economic gain for the violator. Id.
  We may also adjust a forfeiture upward where there is an ability to pay, or where there is a history of prior violations of FCC requirements. Id.

9. Gendreau apparently willfully and repeatedly violated section 73.3526 of the Rules by failing to timely upload or failing to upload required materials to the Station’s OPIF, and by failing to include a link to the Station’s OPIF on the Station’s website.  Section 1.80(b)(10) of the Rules sets forth a base forfeiture of $10,000 for violation of the public file rules.  Gendreau also apparently willfully violated section 1.17(a)(2) of the Rules when it made an inaccurate certification n the Renewal Application regarding the Station’s OPIF.  The Commission has not established a base forfeiture amount for an inaccurate certification made without intent to deceive.  Taking into consideration all of the factors required by section 503(b)(2)(E) of the Act and the guidelines, we propose a total forfeiture in the amount of $8,000.
E. Renewal Application
10. In evaluating an application for license renewal, the Commission's decision is governed by section 309(k) of the Act. 47 U.S.C. § 309.
  Section 309(k) requires grant of a renewal application if we find that, with respect to the station, during the preceding term of its license:  (1) the station has served the public interest, convenience, and necessity; (2) there have been no serious violations of the Act or the Commission’s rules; and (3) there have been no other violations which, taken together, constitute a pattern of abuse. Id. § 309(k)(1).
  If such a finding cannot be made, Section 309(k) provides that the license renewal application is to be designated for a trial-type hearing pursuant to Section 309(k) of the Act. Id. § 309(k)(3).

11. In this case, Gendreau failed to timely upload materials to the Station’s OPIF, failed to upload other materials to the Station’s OPIF, failed to include a link to the Station’s OPIF on the Station’s website, and made an inaccurate certification in the Renewal Application about the Station’s OPIF.  We find that Gendreau’s apparent violations of the Rules do not constitute “serious violations” under section 309(k) of the Act.  In addition, we find no evidence of violations that, when considered together, constitute a pattern of abuse.  Further, we find that the Station served the public interest, convenience, and necessity during the subject license term. 
12. Based on these findings, we do not conclude that designation of the Renewal Application for evidentiary hearing is warranted here, particularly in light of the forfeiture proposed herein. 
IV. ORDERING CLAUSES
13. IT IS ORDERED that the Informal Objection filed by Dave Vickers (Pleading File No. 131262) on January 14, 2021, IS GRANTED IN PART AND OTHERWISE DENIED. 
14. IT IS FURTHER ORDERED, pursuant to section 503(b) of the Communications Act of 1934, as amended, and sections 0.283 and 1.80 of the Commission’s rules, Id. § 503(b); 47 CFR §§ 0.283, 1.80.
 that Gendreau Broadcast LLC is hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of eight thousand dollars ($8,000) for its apparent willful and repeated violations of section 73.3526 of the Commission’s rules, 47 CFR § 73.3526.
 and its apparent willful violation of section 1.17(a)(2) of the Commission’s rules. Id. § 1.17(a)(2).

15. IT IS FURTHER ORDERED, pursuant to section 1.80 of the Commission’s rules, Id. § 1.80.
 that, within thirty (30) days of the release date of this Memorandum Opinion and Order and Notice of Apparent Liability for Forfeiture, Gendreau Broadcast LLC, SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture.  
16. Payment of the forfeiture must be made by credit card, ACH (Automated Clearing House) debit from a bank account using CORES (the Commission’s online payment system),  or by wire transfer.  Payments by check or money order to pay a forfeiture are no longer accepted.  Below are instructions that payors should follow based on the form of payment selected:  
· Payment by wire transfer must be made to ABA Number 021030004, receiving bank TREAS/NYC, and Account Number 27000001.  A completed Form 159 must be faxed to the Federal Communications Commission at 202-418-2843 or e-mailed to RROGWireFaxes@fcc.gov on the same business day the wire transfer is initiated.  Failure to provide all required information in Form 159 may result in payment not being recognized as having been received.  When completing FCC Form 159, enter the Account Number in block number 23A (call sign/other ID), enter the letters “FORF” in block number 24A (payment type code), and enter in block number 11 the FRN(s) captioned above (Payor FRN).   For additional detail and wire transfer instructions, go to https://www.fcc.gov/licensing-databases/fees/wire-transfer.
· Payment by credit card must be made by using the Commission’s Registration System (CORES) at https://apps.fcc.gov/cores/userLogin.do.  To pay by credit card, log-in using the FCC Username associated to the FRN captioned above.  If payment must be split across FRNs, complete this process for each FRN.  Next, select “Manage Existing FRNs | FRN Financial | Bills & Fees” from the CORES Menu, then select FRN Financial and the view/make payments option next to the FRN.  Select the “Open Bills” tab and find the bill number associated with the NAL/Acct. No.  The bill number is the  NAL Acct. No. (e.g., NAL/Acct. No. 1912345678 would be associated with FCC Bill Number 1912345678).  After selecting the bill for payment, choose the “Pay by Credit Card” option.  Please note that there is a $24,999.99 limit on credit card transactions.
· Payment by ACH must be made by using the Commission’s Registration System (CORES) at https://apps.fcc.gov/cores/paymentFrnLogin.do.  To pay by ACH, log in using the FRN captioned above.  If payment must be split across FRNs, complete this process for each FRN.  Next, select “Manage Existing FRNs | FRN Financial | Bills & Fees” on the CORES Menu, then select FRN Financial and the view/make payments option next to the FRN.  Select the “Open Bills” tab and find the bill number associated with the NAL/Acct. No.  The bill number is the NAL/Acct. No. (e.g., NAL/Acct. No. 1912345678 would be associated with FCC Bill Number 1912345678).  Finally, choose the “Pay from Bank Account” option.  Please contact the appropriate financial institution to confirm the correct Routing Number and the correct account number from which payment will be made and verify with that financial institution that the designated account has authorization to accept ACH transactions.
17. Any request for making full payment over time under an installment plan should be sent to:  Associate Managing Director—Financial Operations, Federal Communications Commission, 45 L Street, N.E., Washington, DC 20554.  Questions regarding payment procedures should be directed to the Financial Operations Group Help Desk by phone, 1-877-480-3201 (option #6), or by e-mail at ARINQUIRIES@fcc.gov.
18. Any written response seeking reduction or cancellation of the proposed forfeiture must include a detailed factual statement supported by appropriate documentation and affidavits pursuant to sections 1.16 and 1.80(g)(3) of the Commission’s rules. Id. §§ 1.16, 1.80(g)(3).
  The written response must be filed with the Office of the Secretary, Federal Communications Commission, 45 L Street NE, Washington DC 20554, ATTN:  Albert Shuldiner, Chief, Audio Division, Media Bureau, and MUST INCLUDE the NAL/Acct. No. referenced above.  Filings can be sent by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail.  All filings must be addressed to the Commission’s Secretary, Office of the Secretary, Federal Communications Commission.  A courtesy copy emailed to Heather.Dixon@fcc.gov will assist in processing the response.
· Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701.

· Postal Service first-class, Express, and Priority mail must be addressed to 45 L Street, NE, Washington, DC 20554.

19. IT IS FURTHER ORDERED that, pursuant to Section 73.3526 of the Commission’s Rules, Id. § 73.3526.
 Gendreau Broadcast LLC shall upload a copy of this Memorandum Opinion and Order and Notice of Apparent Liability for Forfeiture to the OPIF of KMCN(FM), Clinton, Iowa.
20. IT IS FURTHER ORDERED that copies of this Memorandum Opinion and Order and Notice of Apparent Liability for Forfeiture SHALL BE SENT, by First Class and Certified Mail, Return Receipt Requested, to Gendreau Broadcast LLC, Attn:  Brad Gendreau, 5759 Riverview Rd, Thomson, IL 61285.
	FEDERAL COMMUNICATIONS COMMISSION




						Albert Shuldiner
						Chief, Audio Division
						Media Bureau
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